''Passive virtues' such as these have their proper and important place. But, as I have attempted to illustrate, there is an obligation to decide in some cases; there is a limit beyond which avoidance devices cannot be pressed and constitutional dicta cannot be urged without enervating principle to an impermissible degree. [Alexander] Bickel's 'virtues' are 'passive' in name and appearance only: a virulent variety of free-wheeling interventionism lies at the core of his devices of restraint. And what Bickel says of some solutions based on the premise of an obligation always to decide is, after all, more aptly applied to his own prescriptions: they 'lead either to a manipulative process, whose inherent, if high-minded, lack of candor raises issues of its own, or to the abandonment of principle and the involvement of the Court in judgments of expediency, as a second-guesser of the political institutions; or, more commonly, to both.'

If I were a conspiracy theorist, I would suspect that the progressives on the Supreme Court were simply delaying a decision to allow the creation of a critical mass of same sex "marriages." Reluctance to annul these "marriages" would then give Kennedy a reason to retreat from his last opinion holding that the people through their state governments have the plenary power to democratically define civil marriage for themselves.

Actually, such a conspiracy appears to be quite real. See Professor Koppelman's last post.

Two pendulums swinging one way and the other, not in sync. The "progressive" elite and conservative majority becomes the "progressive" majority and conservative elite. The court led and now the court lags. People argue for judicial review and the next generation argues against it, for the same purpose.

I'm with Derrick Bell on Brown, but gay rights would not have come as far as they have without court "interference" The majority now support marriage equality. Good.

D. Ghirlandaio said...gay rights would not have come as far as they have without court "interference" The majority now support marriage equality. Good.

If a majority of American voters actually support redefining civil marriage, then progressives would not be pursuing a judicial redefinition reversing the democratic definition of civil marriage in a super-majorty of states. Instead, they would be lobbying state legislatures.

but ignoring the history of that "nice" Republic which supported slavery, denied women and property-less white men of voting and other rights (not to mention the indigenous): that "nice" Republic which passed the Civil Rights Amendments ending slavery and protecting former slaves but permitted these to be overcome with Jim Crow laws that Plessy v. Ferguson confirmed with "The Gilded Age" as a backdrop; that "nice" Republic that took until 1954 with the Warren Court's unanimous decision in Brown v. Bd. of Educ. to overcome - partially - Plessy, and then augmented by Congress and LBJ with the 1960s Civil Rights Acts, fought tooth and nail by the former Democrats of the former slave states who then became the base of what was once the Republican Party of Lincoln, continuing yet with phony ID voting laws to deprive voters without realistic proof of voter fraud. And let's go back to the 19th Amendment ratified in 1920 giving women the right to vote in this "nice" Republic. (I wonder how these "nice" ladies will vote in November.)

The Republic that Ben Franklin referred to was not so "nice" to a lot of people, and still isn't (including the indigenous).

Sen. Cruz, our CO gasbag's hero, accused the Supreme Court of activism with it declination on SSM whereas Gerard suggests passivity. Our CO gasbag suggests he is not a conspiracy theorist (nut?) but suggests the progressives on the Court might be. I can imagine former Boston Boy Franklin telling our CO gasbag to go fly a kite or steal a hot stove. Myopia, indeed.

By the Bybee [expletives deleted], for the record Franklin did not describe the Republic as "nice."

The USSC is being overly coy here, I think, including in providing clarity as to the proper use of stays. It is not only doing that here to be fair. The recent voting cases in the news are at best clear by implication (see Rick Hasen cited on the blogroll)

Another issue is the death penalty: four justices dissented w/o opinion from a denial of a stay in lethal injection case, one more example of the USSC or individual justices not saying anything substantive. This is so even when 2-4 justices clearly are concerned about the matter.

We are not supposed to do so, but the denials sort of send a message that Baker v. Nelson shouldn't block SSM judgments. If Judge Sutton, the apparent swing vote in the 6CA, uses that, it is somewhat hard to take seriously.

Again, I don't think the USSC only did that here, but am not saying that is what is being said by the OP. Not doing something here sends a message and has a strong practical implication in support of SSM. Granting that, there is some reason to support it. Letting the matter develop, especially w/o a circuit split on the basic issue, is a good idea.

It is due time that the USSC decides the basic question of sexual orientation discrimination. There is some dispute in the circuit as scrutiny and it would provide some degree of clarity to the law. I don't criticize the gay rights rulings as much as some, but there is some lack of clarity there.

I'm reading Gunther's article and will have something to say on it perhaps later today or tomorrow. While I have not read Bickel's book that is the subject of the article, I have over the years read much about Bickel, his book and other writings. The context of the quote provided by Gerard is of prime interest but so is the general critique (so far) of Bickel by Gunther.

And speaking of quotes (as I was), back to our myopic CO gasbag's quote playing on a distortion of Ben Franklin's quote following the Constitutional Convention, let me quote the penultimate (be still, my favorite word!) paragraph from Nico Kristof's NYTimes column today "When Whites Just Don't Get It, Part 3":

"Today we sometimes wonder how so many smart, well-meaning white people in the Jim Crow era could have unthinkingly accepted segregation. The truth is that injustice is easy not to notice when it affects people different from ourselves; that helps explain the obliviousness of our own generation to inequity today. We need to wake up."

Our myopic CO gasbag is a veritable Rip Van Winkle when dealing with (actually ignoring) the history of our once "nice" Republic.

The Legal History Blog's Sunday book feature provides a link to Justice Stevens' review ("Law Without History?") of Judge Katzmann's "Judging Statutes" in the New York Review of Books. This will interrupt my reading of Gunther's article as the title of Stevens' review might suggest revisits of Heller and McDonald. (In line with the theme of Gerard's post, how come the Court has not granted cert, reviewed 2nd A appeals post-McDonald? Passivity? Defective history?)

The Originalism Blog provides a link to not only Stevens' review, but also to Josh Blackmon's critique of Stevens in defense of Justice Scalia (Josh's apparent role in legal academia as he seeks tenure), as well as a link to Norm Ornstein's Atlantic review of Katzmann's book.

Meantime, I'm working on a parody of our myopic CO gasbag, taking liberties with Sam Cooke's "Wonderful World" with "Nice Republic, If you Kept It" with the stress on Cooke's line "Don't know much about history ...." Just might be a fitting blurb for our CO gasbag's work of friction in progress attacking progressives.

I read Stevens' review and saw part of a CSPAN segment with the author of the book. It's good that you are keeping up with your elders.

I have not read the immediate criticism you cite but JB has long been a critic of Stevens, including finding it somehow unethical for Stevens to write and comment as he now is, in part since JB for some reason doesn't really think Stevens is "retired."

I have noted that (though it does not satisfy Bret that I'm rational) my disagreements with Stevens' amendment book, but JB is a bit insufferable on criticizing Stevens.

The failure to take any 2A case after Heller/McDonald is overly passive imho. I'm reading the book "Cruel and Unusual" by John Bessler, a work on the death penalty, including the "original understanding" of it.

It is interesting if a bit long-winded at times. It can be see as part of the ongoing enterprise of using history to help promote what can be seen as liberal causes, though not only liberals have been against capital punishment over the years.

Joe,I did see the Allison Orr segment on the Colbert Report and was tempted to download her SSRN article but 50+ pages competed with shorter articles I planned to read. I still may download the article as the subject is interesting, to wit, the Court accepting "facts" provided by amici not in the lower court records. Both conservative and liberal Justices are so violative.

By the way, Stevens' review did not reference Heller and McDonald since these cases did not basically involve statutes, the subject of Judge Katzmann's book.

A fair amount of my law practice dealt with the Internal Revenue Code and in my experience the legislative history on the many tax laws enacted during my career was critical to understanding federal tax laws.

And in case Justice Kagan plans on hunting with Justice Scalia, she perhaps should be aware of my:

"JE NE RECUSE!"

In that duck blindLady Justice unveilsHer traditional blindfoldFor these bonding males:Scalia and Cheney,Shotguns at attack,Taking aim at Justice,"QUACK, QUACK, QUACK!"

I assume that our myopic CO gasbag chose with care (as a self-avowed textualist) his use of the word "nice" to describe the Republic that he claims has not been kept. Yes, slavery predated the Republic formed by the Constitution/Bill of Rights in the timeframe of 1787-1791. But slavery grew quite rapidly even after 1808 as America expanded, leading eventually to the Civil War, which was not a "nice" war. And Jim Crow followed for about a century after the Civil War Amendments with remnants to this day. The Republic that Boston Boy Ben Franklin referenced was not "nice" for a lot of people in addition to slaves and former slaves and their progeny, such that "ladies' day" may carry the day for liberals/progressives this November.

I have finished reading Gunther's article and will provide comments later on. For now, I wish to point out that the quote provided by Gerard is a portion of the "ultimate" - i.e.closing - paragraph of the article. Here's what was omitted from the beginning of that paragraph:

"Bickel fears the conclusions drawn from 'the premise of an obligation always to decide.'155 There is no such obligation if that obligation is thought to require decision of the broadest constitutional questions at every opportunity. There is legitimate discretion not to review, as in the certiorari jurisdiction; there is not only discretion but obligation not to decide the broad constitutional question if narrower grounds of decision are available."

"155. Ibid. Bickel traces this premise rather tortuously to Marshall. See, e.g., pp. 118-19. For another example of questionable attribution to Marshall, see the discussion of "Political Warfare and the Uses of Decisions of Courts," pp.254-72. Bickel draws from Marbury v. Madison, 1 Cranch (5 U.S.) 137 (1803), the notion that the Court's 'doctrines are not to be questioned,' by citizens or by other departments of government. P. 264. That confuses Marshall's assertion of judicial authority to interpret the Constitution with judicial exclusiveness; that confuses Marbury v. Madison with statements in the Little Rock case, Cooper v. Aaron, 358 U.S. 1, 17-19 (1958)."

For completeness, footnote 156 is at the end of this paragraph:

"156. P. 200."

Whether the omissions impact the context of what Gerard did quote may not be clear. But Gunther's article was a strong critique of Bickel's views in the latter's book and earlier article on "Passive Virtues." Bickel was no friend of the Warren Court.

I haven't checked to determine if Gunther is alive. But it is not clear to me that Gunther would appreciate his quote being used to criticize the current Court on declining to grant cert on any of the SSM cases. I'll have more to say on this later.

Our myopic CO gasbag demonstrates once again that he was not an English major as he trips over "nice" and adds "nicer." Imagine how short-lived that "nicer" period (beginning in 1954 with Brown v. Bd. of Educ.?) was compared to the over 160 years of the prior "nice" period of our Republic that we may be losing because " ... that Republic is fading rapidly as our democracy gives way to a bureaucratic and judicial dictatorship." Quelle fromage?

"Yes, our Republic was 'nice' when compared with the prior monarchy while slavery existed and far 'nicer' when we abolished Democrat slavery and Jim Crow."

reminded me of what Tonto said to the Lone Ranger in response to the latter's concerns about being surrounded by Indians: "What you mean 'we' ...."

And once again our myopic CO gasbag ignores the history that the supporters of "Democrat slavery and Jim Crow" became the base of the current Republican Party following Brown v. Bd. of Educ. and the 1960s Civil Rights Acts, as the Republican Party was no longer the party of Lincoln.

The reference to republicanism leads me to note that some (e.g. Cesare Beccaria, Benjamin Rush) argued the death penalty violated republican principles. Some saw (see) it as a "monarchical" and/or "despotic" institution.

And consider the Court's reaction to Wisconsin's ID laws, which our myopic CO gasbag might describe as another example of " ... that Republic ... fading rapidly as our democracy gives way to a bureaucratic and judicial dictatorship."

Our myopic CO gasbag fails to recognize that slaves could not vote, that even after the Civil War Amendments Jim Crow laws limited the ability of blacks to vote, especially in the former slave states; that it took the 19th Amendment ratified in 1920 to give women the right to vote. There was no need for voter ID laws back then as being a while male was enough (speaking of white male aliens impersonating voters before becoming citizens). And blacks and women could for the most part be be easily identified by appearance to keep them from voting by lawful means and otherwise. It is the fear of the GOP with its bases of former southern democrats and the Tea Party that blacks and perhaps women are voting for Democrats and voter IDs are a method of reducing this. Imagine Gov. Walker justifying voter ID laws even if only one person may be voting illegally. (I wonder if Walker ever heard of cost/benefit analysis. Now the GOP bases of what is no longer the Party of Lincoln are showing their true colors, fearing the changing demographics - which may result in the "nicest" Republic yet.

Those interested might take at look at Commentary's "The Lost Greatness of Alexander Bickel," 3/1/12 by Adam J. White, especially for the praise bestowed on Bickel by conservative George Will. But that was before the recent declination by the Court to grant cert on any of the SSM cases. I guess it depends on whose Gore is being am-Bush-ed, or vice versa.

Shag: There was no need for voter ID laws back then as being a while male was enough...

There was an enormous need for voter ID (and registration) back then. Non-citizen immigrants voted freely and many political machine voters cast multiple ballots.

There is a humorous scene from the film Gangs of New York portraying this all too real practice:

http://youtu.be/B9eL-4F8lFc

BTW, I have to disagree with your suggestion that female and African American Democrats are too lazy or stupid to obtain IDs to vote (not to mention being necessary to conduct many other normal activities of life).

besides redundancy demonstrates his ignoring the GOP strategy spelled out by the GOP legislators passing such laws. No, these ID laws are aimed at citizens that the GOP doesn't want to vote. And his falsely attributing a suggestion I did not make really constitutes his views and beliefs, as he desperately fears the changing demographics that would make him even less of a lowlife than he is.

Remember, our myopic CO gasbag chose the word "nice" because he probably actually believed we had a "nice" Republic even though it wasn't so "nice" to slaves, women, the indigenous and poor unpropertied whites.

"Democrats were a far tougher lot to overcome than the English royals and parliament. "

Particularly those Southern Jeffersonian ones going on about state's rights...Who does that sound like in contemporary politics?

"I have to disagree with your suggestion that female and African American Democrats are too lazy or stupid to obtain IDs to vote"

So you don't subscribe to the idea that government imposed requirements are often harder for groups with less resources and familiarity with navigating bureaucracies to overcome? Isn't that the idea why government regulations are supposed to be so harsh on small businesses (as opposed to their larger corporate counterparts)?

"You may also note that the GOP has never offered a policy of government racial discrimination"

The Republicans in charge of Congress during Reconstruction must not count.

BD: "I have to disagree with your suggestion that female and African American Democrats are too lazy or stupid to obtain IDs to vote"

Mr. W: So you don't subscribe to the idea that government imposed requirements are often harder for groups with less resources and familiarity with navigating bureaucracies to overcome?

Think about that argument for a moment.

More than any other group of Americans, single female and African American Democrats disproportionately make up the population of government welfare state dependents. The only group more familiar with navigating bureaucracies than these Democrats are administrative lawyers.

Isn't that the idea why government regulations are supposed to be so harsh on small businesses (as opposed to their larger corporate counterparts)?

Getting a photo ID is nothing remotely like complying with a Federal Register of 170K-plus pages.

BD: "You may also note that the GOP has never offered a policy of government racial discrimination"

Mr. W: "The Republicans in charge of Congress during Reconstruction must not count."

Nope.

Transition assistance for former slaves (not African Americans freemen and women) is not government racial discrimination.

I find discussions such as Mr. W's article useful if somewhat incomplete to answer current questions. They are useful to deal with the broad claims of certain originalists and others.

The article notes how "blacks" -- not just newly freed slaves -- were covered by various provisions. Rather familiar concerns about 'class' legislation or "what about poor whites" etc. were made and rejected. The political parties making the arguments were generally switched though.

The case was easier, especially in Southern states, given the fairly recent nature of slavery and Jim Crow type legislation even in the North. Blacks as class was more clearly burdened. But, just how much things have changed is in unclear when well off blacks still are subject to "Driving While Black" etc.

One interesting tidbit is the reference to the "organic law," the Declaration of Independence by some when arguing that equal protection was mandated by the federal government. Slavery as noted violates the ideals of republican government but an equal protection component -- however unevenly applied -- was understood by many long before the 14A. Self-evident even.

This was, as noted in Bolling v. Sharpe (cited in the article), recognized before the 20th Century in the courts as well. Thus, one 1896 opinion of the USSC noted in dicta:

that the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination by the General Government, or by the States, against any citizen because of his race

As to the "obligation to decide" SSM, to be more germane, Prof. Dorf had more to say:

"single female and African American Democrats disproportionately make up the population of government welfare state dependents. The only group more familiar with navigating bureaucracies than these Democrats are administrative lawyers."

If true, I don't think your conclusion follows, since 1. the disproportionate use is likely a factor of disproportionate need as much as, if not more than, savvy at navigating the bureaucratic procedures and 2. there are no government agencies that I'm aware of with the mission to help people get voter IDs like there are for many government programs.

"Getting a photo ID is nothing remotely like complying with a Federal Register of 170K-plus pages."

That's facetious since we're talking about a single requirement versus all requirements. When it comes to any single government requirement concerning businesses we're told by conservative and libertarian groups that it will fall more heavily on the smaller, less savvy businesses, but somehow that general rule miraculously does not apply with navigating the various departments of health, social security and motor vehicles/registrars that exist for getting these approved voter IDs.

"Transition assistance for former slaves (not African Americans freemen and women) is not government racial discrimination."

You should read the article before dismissing it, especially the part about the relief measure of March 16th, 1867 made for "for the relief of freedmen or destitute colored people" period.

A business has to comply with all federal, state and local regulations applying to it. Determining all of those regulations, nevertheless complying with them all, is nearly impossible for a small and even medium businesses. Nearly all businesses are in violation of some regulation.

In comparison, getting a photo ID consists of going to the DMV and waiting.

***

You should read the article before dismissing it, especially the part about the relief measure of March 16th, 1867 made for "for the relief of freedmen or destitute colored people" period.

This relief bill to which you quote applied to the multitude of freed and escaped slaves from the South who made their way as refugees to the District of Columbia during the war.

Your article's thesis that the Congress who enacted the EPC of the 14A also enacted legislation for the relief of African Americans but not whites in the South, thus providing a legal basis for modern government racial preferences is misplaced.

The distinction the victorious union Congress made with its Reconstruction legislation was not between black and white per se, but rather between former slaves and rebels. The Union had just fought a very bloody war against the latter to free the former. The radical Republicans had little sympathy for or an inclination to spend money on the rebels.

Our myopic CO gasbag fears "foreign aliens" in his mostly lily white* CO mountain top community, located some distance from the the Atlantic and Pacific Oceans and Mexican and Canadian borders to support the need for ID voting laws. The "foreign aliens" threat in CO consists of visitors, mainly whites, seeking the joys of "whitey crack" for recreational purposes of course. Perhaps with the coming Nov. elections CO should be more concerned with voting under the influence of ganja. Perhaps drug tests should be required in addition to IDs to avoid Rocky Mountain highs.

*I'm not quite sure how the "one drop" rule might apply, especially for those claiming some indigenous ancestry, but I have reservations on that.

This post by Gerard has inspired me to readings beyond Gunther's article. As I read the article, I had the impression that Gunther was a liberal responding to the conservative Bickel's book and earlier writing that it was based upon. I had taken ConLaw in the Fall of 1952 and the subject matter of Gunther's 1964 article was not a matter I was that familiar with as I was establishing my law practice. I knew a fair amount about Bickel at the time, particularly as he had clerked for Justice Frankfurter in the early year that Brown v. Bd. of Educ. was before the Court, much more than I knew about Gunther until I read the obituary that Joe provided a link to confirming Gunther's liberal creds, including his clerking for CJ Warren in 1954-5 after clerking for Judge Learned Hand. Justice Ginsburg paid high tribute to Gunther relative to her career first clerking for a federal judge (unusual for a female back then), her stint with ACLU (of which I was a proud card carrying member) and then with the Court hopefully continuing until at least after the 2016 elections.

Frankfurther was appointed to the Court by FDR. Earlier this year I had read Sujit Raman's "Felix Frankfurter and his Proteges: Re-examining the 'Happy Hot Dogs.'" This article focused on Frankfurter's academic career and his role in the New Deal as a confidant of FDR - but not his role on the Court when FDR nominated him.

And I just finished reading Melvin L. Urofsky's "Conflict Among the Brethren: Felix Frankfurter, William O. Douglas and the Clash of Personalities on the United States Supreme Court," Duke Law Journal Vol. 1988:71-113. Urofsky has a marvelous sense of humor and I have enjoyed several other articles of his over the years. ConLaw is not Rocket Science, despite efforts of some - too many - Justices, judges, ConLaw Profs - to ignite too many rockets that end up fizzling out.

So, Bickel clerked for Frankfurter in 1953 and wrote a memo at the latter's direction in an effort to delay a decision on Brown v. Bd. of Educ. Bickel was an acolyte of Frankfurter and delivered what the latter was looking for, thus delaying the decision in Brown until after CJ Warren was installed. While the Brown decision was unanimous, Frankfurter's judicial conservative philosophy (despite his appointment by FDR and his role in the New Deal) perhaps might have been a tad discomforted with the decision, while recognizing the importance of unanimity.

I'll pick up on this in later comments as I have some personal commitments to attend to later today. But I would like to let Gerard know that i am grateful for this post even if, in my view, Gunther might have objected to Gerard's use of the article with respect to SSM. Also, Gerard, both here and at his CC blog, tosses out thoughts that might lead to an article or a book. One area involves the Bill of Rights. If Gerard hasn't read Urofsky's article, he might find relevant information for that project. Also, I am aware that Gerard had clerked and perhaps might consider this premise of mine:

"That a clerk for a Justice or Circuit Court judge is like the apple that does not fall far from the tree."

Gerard has his personal views of his experience and the impact on his legal academic career but I am interested in an empirical analysis of clerks, including those who "tried" to shape the views of a justice/judge and/or went on in legal academia with contra views. In my view, Bickel was an example of an apple.

Gerard's paternity leave may provide time from diaper changing to address my thesis, but making sure he washes his hands carefully to avoid two personal situations when my hospitalization was required; we had four children under four and all in diapers at the same time. But paternity leave was not in vogue at the time. So perhaps Gerard, with apologies to Mrs. Gerard, should look forward to more paternity leaves in the future to enhance his writings.

Regarding my proposed clerk project for Gerard,I should have mentioned that Gunther wrote a well received bio of Judge Learned Hand for whom he clerked back in 1953. I have had the bio in my home library and have only done spot reading so I don't know if Gunther qualifies as an apple in clerking for Hand. The obituary included CJ Warren's praise for Gunther as his clerk in working on the unanimous decision of the Court in Brown. Hand was not fond of the decision in Brown and was friendly with Frankfurter over the years. (I don't plan to read the bio from cover to cover as my age and one good eye are limiting. But Gerard should have plenty of time between diaper changes during his paternity leave to do justice to this suggested project.

There's a considerable number of regulations that apply to businesses, but by that token there is no reason to narrow the focus to just the ID requirement in election law, there's lots that every voter must face. The libertarian idea that regulation falls more heavily on those with less resources and familiarity with the bureaucracy doesn't depend on the sheer number of regulations.

BTW-, if you don't have the now required documents to get an ID from the DMV there's considerably more at issue than going there and standing in line.

"The distinction the victorious union Congress made with its Reconstruction legislation was not between black and white per se, but rather between former slaves and rebels."

Actually, they often included Southern whites in relief measures. But sometimes, as the article notes, they did not, singling out measures for freedmen AND destitute BLACKS, period. The same Congress that drafted the 14th btw.

I wonder just how few whites today with pride in their southern roots can trace their ancestry to actual slaveowners back in the South's glory days of slavery. I would suspect that more blacks today can trace their ancestry to actual slaveholders. Back in the South's glory days of slavery, most whites in the South were non-propertied, particularly in the category of chattel slavery. The free labor provided by the slaves competed with these poor whites, who could take pride in not being slaves (wink, wink) despite being negatively impacted economically by slavery. Slaves developed artisan skills over the years dispacing the need for white artisans, at least on the plantations.

As to our myopic CO gasbag's mis-history of Reconstruction, perhaps he will concede that the Republican Party of today (post Brown v. Bd. of Educ. and the 1960s Civil Rights Acts) is no longer the Republican Party of Lincoln.

Gunther's critique of Bickel focused on Bickel's approval of the Warren Court's "punting" in the case of Naim v. Naim (1957) just 2 years after the Warren Court's unanimous decision in Brown v. Bd. of Educ. Naim challenged anti-misegination laws and should perhaps have been a slam-dunk (my term, not Gunther's) after Brown. It took Loving v. Virginia in 1967 to put down anti-misegination laws. As to why the Warren Court "punted" in Naim 10 years earlier, perhaps it was appropriate because of the reactions to Brown in the former slave states. All deliberate speed perhaps had to be deliberate due to the challenge of Brown to Jim Crow laws since Reconstruction and the Court's Plessy v. Ferguson decision in the late 18th century. (Both Jack Balkin and Sandy Levinson have written extensively and wisely on Brown, including what Brown might/should have said.)

The 2012 Commentary article in praise of Bickel was based upon the activism of the Warren Court as perceived by conservatives* such as George Will. Now the complaint of the conservatives* seems to be that the current Court is passive while SSM is steamrolling and is no longer deliberate. It's a shame that Finley Peter Dunne's Mr. Dooley is not around for commentary. Fortunately we have Jon Stewart and Stephen Colbert.

But I don't think that Gunther would approve of Gerard's partial quote as supporting the inaction of the Court today on SSM. In due course, the Court may indeed address SSM via a per curiam decision. For the present, perhaps Justice Ginsberg - who admired Gunther - said it best in her recent out of Court comments.

*Many of these conservatives even back in the early years of Brown but more so today are made up by former Democrats from the former slave states making up the base of the current Republican Party.

I think the "common law" idea of case by case development of constitutional law (Judge Ginsburg supported this during her confirmation hearings, using an example of how her circuit did this to decide 4A questions bit by bit), to "‘get it right’ and ‘keep it tight.’"

I do think at some point the USSC should take the SSM cases, but push comes to shove, one year after Windsor, it is not horrible that they are not.

Gradualism can leave in place in the short term horrible law. But, Brown et. al. showed turning horrible law around is akin to turning a tanker.

Also, though we see racial discrimination as a united whole, it simply was not in the past. For instance, even Justice Harlan, the dissenter in Plessy, felt public school segregation different:

"Of course, what I have said has no reference to regulations prescribed for public schools, established at the pleasure of the state and maintained at the public expense."

BEREA COLLEGE v. COM. OF KENTUCKY (racial integration in a private college not protected)

Justice Jackson in an unpublished concurrence to Brown noted that over time education became so essential to citizenship etc. that the old path was no longer sound. It was no longer mere "social" in nature. And, even there, as seen in Loving, "social" discrimination was no longer seen as acceptable.

The original understanding on the whole, with limited dissent, was that interracial marriage was not covered. Harlan went along with the sentiment that "evenly applied" race based laws were acceptable there.

There is also the prudential concerns about the strong public reaction to overturning such bans (miscegenation perhaps first came to the fore as a major public bugaboo during the election of 1864, used against Republicans, most of whom joined with Lincoln in denying they were for the right to that sort of thing).

Constitutional principle might eventually lead to broad decisions but it is not inappropriate for the Supreme Court, especially with its discretionary doctrine, to not decide all things at once.

On "Last Week Tonight" John Oliver attempts to put the Court in dog houses for not permitting oral arguments to be televised. Will the public - or the Justices - go viral with the show's new website? Perhaps our constitutional scholar bloggers may be expected to comment on the selection of dog breeds for the respective Justices as a demonstration of bias. But can they really object to the bulldog selection?

Gunther's article criticizes Bickel's "passive virtues" with respect to Baker v. Carr, the Court 1962 6-2 decision that gave us "one person, one vote." But as Gunther points out in his 1964 article, the lower Federal courts seemed not to properly applying the decision in Baker v. Carr, suggesting that under the circumstances the Court should have taken steps, via appeal, cert, to address this failure of the federal courts. Justice Frankfurter dissented vigorously in Baker v. Carr. So Bicker as a former Frankfurter clerk demonstrated consistency.

The greater discussion should address the declining numbers of cases taken/decided by the Court in more recent years. There are many important constitutional issues than SSM that could be addressed by the Court to better guide the lower courts.

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